The underlying facts are as follows: On or about March 27, 1984, Andrew Taylor, a Customs Inspector, United States Customs Service, who was then assigned to make border searches of incoming mail, performed a customs inspection on a first-class letter, in the form of a brown mailing pouch type envelope, addressed to "Mr. J. Nader c/o International Insight, 2019 Connecticut Avenue, N.W., Washington, D.C. 20008, U.S.A." The customs declaration disclosed that the package contained "books". The return address given on the envelope was "Ralf Zonatz, 1012 LA Amsterdam, DOMRAK 42-43 Holland." The package was opened by the Customs Inspector because he felt he had reasonable grounds to suspect that the material enclosed therein was being imported into the United States contrary to law. See 19 U.S.C. § 482. Inside he found an eight -mm movie film, four magazines and one advertisement for another film. For the purposes of the instant motion, the Court assumes that the film and the magazines are obscene.
*fn3"
Also reviewed at the same time were two other magazines found in the package, "Boy No. 53" and "Sweet Little Sixteen, Volume 3, No. 8" and two pictures. The magazines and the pictures depict nude boys. This latter group of material differs from the earlier described material in that, while the latter group of material consisted only of pictures of nude boys, the earlier described material depicted nude boys engaged in a variety of sexual acts.
*fn4"

When the warrant was signed, the agents returned to the defendant's home and executed the warrant. They found the package on a table in the hallway. The package was seized and then the agents conducted a general search of the defendant's room. They seized similar material, which can be described as obscene, and other material depicting material similar to the second group of materials described in the affidavit in support of the warrant. This latter group is not considered as obscene since it depicts only nude boys who are not engaged in any type of sexual or suggestive acts. In addition, the agents seized newspaper clippings, toys, stuffed animals and photo albums. This last group of materials relates to the personal life of the defendant and appears to have no relevance to the charges pending before the Court, except perhaps to identify the room as that of the defendant. The photo albums are nothing more than pictures of the defendant, and apparently families he has visited on his many trips overseas in the conduct of his business. Presumably, this group of material was seized to identify the defendant and to establish that the room searched was indeed his room.

When there is probable cause to believe that a premises to be searched contains a class of generic items or goods, a portion of which are stolen or contraband, a search warrant may direct inspection of the entire class of all of the goods if there are objective, articulated standards for the executing officers to distinguish between property legally possessed and that which is not. . . . A search warrant authorizing inspection will not be a general warrant if such standards reasonably guide the officers in avoiding seizure of protected property, and if upon return of the warrant the magistrate may review the search to determine whether the instructions were followed and legitimate property and privacy interests were protected. The standards may be contained in the search warrant or, if certain conditions are met, in the accompanying affidavit. The search warrant may be construed with reference to the affidavit for purposes of satisfying the particularity requirement if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit therein.

United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982) (citations omitted). A search warrant must disclose the things to be seized with the most "scrupulous exactitude" when the things are books and the basis for their seizure is the ideas they contain. Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 511-512, 13 L. Ed. 2d 431 (1965).

Turning to the facts of the instant case, it is noted that the warrant specifically described the items which had previously been viewed by the government agents and the magistrate and that if the warrant had stopped there and the agents had seized nothing else, the part of the motion now under consideration would be without merit. But, of course, the warrant did not stop at that point. It provided that the agents could seize, in addition to the above, "other photographs, magazine, writings and documents which are evidence of violations of Title 18, U.S. Code Sections 1461 and 1462."

Second, the warrant gave little or no direction as to items which one must suspect that the government agents really wanted, in addition to the "obscene materials" already seized, such as other mailings received from foreign countries, or from the sender in particular, or order forms or blanks or copies of letters to senders of the material, all of which would be a link in the chain of evidence. The warrant fails even to direct the agents to seize similar pictures, books or magazines. For example the agents in applying for the warrant seemed to draw a distinction between two types of magazines, one "Piccalo Extra No. 15" which depicts young boys committing acts of masturbation and fellatio and "Boy No. 53" containing pictures of nude and dressed boys who are not depicted in sexual acts. Thus, the warrant could have directed the agents to seize "Piccalo" magazines since presumably the agents knew that those magazines contained the same type of pictures; or the warrant could have described in detail the types of acts which are obscene. The Court does not say that such a warrant would have been valid, but it certainly would have been closer to the requirements of the Fourth Amendment and would have evidenced an intent to describe the material to be seized with "scrupulous exactitude".

The failure of the search warrant is that, at least with respect to "obscene" material, it leaves the definition of "obscene" to the officers executing the warrant. See Marcus v. Search Warrant, 367 U.S. 717, 731-732, 81 S. Ct. 1708, 1716, 6 L. Ed. 2d 1127 (warrant based on the assertion of a single police officer without scrutiny of a judge is invalid). Although Marcus dealt with the issuance of the warrant rather than its execution, the same standard would apply. In both situations, under Marcus and here, it is the officers or agents who are asked to make the determination of whether the material in question is obscene.

The defendant also cites the Court to Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979), but the primary thrust in that case was that the warrant was open-ended rather than a general warrant. There, the Town Justice signed an open-ended warrant and then accompanied the officers who were to execute the warrant to the store that was to be searched. The Supreme Court noted that the Town Justice "did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure." U.S. at 326, S. Ct. at 2324 (citations omitted). "He [the Town Justice] allowed himself to become a member, if not the leader, of the search party which was essentially a police operation." Id. The Supreme Court held that the motion to suppress should have been granted.

In this case, just viewing the language of the warrant alone, this Court must conclude that the warrant is a general warrant insofar as it refers to items other than the six items described with particularity.

III

Notwithstanding that the warrant itself is general and does not describe the items to be seized with sufficient particularity, the question is raised as to whether a reference to the supporting affidavit will supply the specificity required to uphold the warrant.

The facts in this case are more closely identified with the facts in Sheppard than those in Leon. In Leon, the state court determined that the warrant was invalid because the supporting papers did not establish probable cause. 104 S. Ct. at 3412 (the Supreme Court accepted the Court of Appeals conclusion that probable cause was lacking). In Sheppard, the supporting papers established probable cause but the warrant did not describe the property to be seized.

Here, of course, the facts differ. Neither the warrant nor the affidavit describe the items to be seized other than those six items which were described with particularity. See Parts II and III, supra. Rather, it was left up to the agents and the officers to decide what was evidence demonstrating a violation of 18 U.S.C. §§ 1461 and 1462. Necessarily, they had to decide what was obscene. The lack of particularity in this case allowed the officers to rummage, at will, through the defendant's room as is evidenced by the items seized during the search.

Nor can this Court accept the government's oral argument that in conducting the search the officers were concerned that the defendant, a suspected pedophile, was likely to seek to contact children and that therefore this somehow justified the broad language of the warrant and the scope of the search actually conducted. The government, after seizing the material, may have attempted to contact the parents of some of the children named or pictured in the defendant's albums. But, as the Court has observed, those pictures were not suggestive of any illegal activity; rather they were family scenes some of which included the defendant, and some of which included pictures of children taken with their parents. If those albums had not been connected with this defendant, it is extremely doubtful that anyone would have given a second thought to them. The above actions of the officers demonstrates the risk of a general warrant, especially in a First Amendment case. No evidence was presented at the time of the issuance of the warrant, or at the time of the hearing in this case, that suggested that the defendant was attempting to contact children for any illegal activity. The comments of the Court in this regard are not to be taken as an overall criticism of the agents and officers conducting the search; indeed, this Court believes that they were only attempting to conduct a legitimate search because of suspected activities of the defendant and for the protection of any children who may have been involved. But the issue before the Court cannot be based upon the intuition of the agents and officers, but rather, must be based upon the requirements of the Fourth Amendment.

The Supreme Court has not held that all the government must do to override the exclusionary rule is to show that the search was authorized by a warrant signed by a detached and neutral magistrate. If that was the import of the ruling then it would seem that defendants would have lost the right to challenge the sufficiency of a warrant, for under such a ruling, a victory would be academic. Indeed, the Supreme Court has stated that, "depending on the circumstances of a particular case, a warrant may be so facially deficient - i.e., in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it is valid." Leon, 104 S. Ct. at 3422 (citation omitted, emphasis the Court's). The instant case is such a case.

Here the warrant is so general that the executing officers could not reasonably presume it to be valid. While the officers are not experts in the First and Fourth Amendments, the fact that the warrant and affidavit gave them unfettered discretion to seize anything which in their opinion is evidence of a violation of one or both of the involved federal statutes should have been enough to give them reason to pause. For these reasons, nothing in this case demonstrates that the exclusionary rule should not be applied.

Moreover, although most of the above cases relate to searches for property other than allegedly "obscene" materials, a search for obscene materials was involved in Sovereign News, Riggs and Torch. In Sovereign News, the magistrate issued a warrant for specifically identified films and magazines said to be obscene, and authorized the seizure of "other magazines of the same kind and nature." The defendant argued that the warrant was impermissibly broad but the court stated that, "we refuse to invalidate the entire warrant as appellant requests. Where the police and the issuing magistrate have listed the titles of the primary targets of the search, we will not invalidate the entire warrant. Rather, we will sever those portions containing the overbroad language and allow the items seized under the proper section to stand as evidence." 690 F.2d at 576 (citations omitted). The court in Riggs reached the same result. It severed the impermissible part of the warrant and upheld that part which described the film to be seized with particularity. 690 F.2d at 300-301. Finally, the court in Torch recognized that the district court had properly severed the invalid part of the warrant and upheld that part of the warrant which described the film to be seized. 609 F.2d at 1089.

The Court of Appeals for this circuit has had occasion to address the issue of severance. See In Re Search Warrant Dated July 4, 1977, 215 U.S. App. D.C. 74, 667 F.2d 117 (1981), cert. denied, sub-nom, Hubbard v. United States, 456 U.S. 926, 102 S. Ct. 1971, 72 L. Ed. 2d 440 (1982); Huffman v. United States, 152 U.S. App. D.C. 238, 470 F.2d 386 (1971). In Huffman, the warrant incorporated the supporting affidavit which described the items to be seized as "Modern Girls" and "Girls", which had been viewed by the judge who issued the warrant, "as well as other magazines of a similar appearance and contents." The court recognized the severability of the seized evidence and upheld the seizure of the items described with particularity. U.S. App. D.C. at 245, n. 7, 470 F.2d at 393, n. 7.

The Court concludes then that it is proper to sever the offending portions of the warrant and uphold so much of the warrant as described the six items with particularity.

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